Bill S284-2013

Prohibits the unauthorized sale of veterans' commemorative property by cemeteries

Prohibits the unauthorized sale, purchase, sale or transfer of any cemetery marker, flag holder, monument, statue or other physical memorabilia that is over 75 years old that commemorates the life or death of a veteran or group of veterans, including but not limited to a military unit, company, battalion or division, if such cemetery marker, flag holder, monument, statue or other physical memorabilia that commemorates the life or death of a veteran or group of veterans has been placed in any cemetery; makes violations a class B misdemeanor; permits cemeteries to make such sales upon application to the state cemetery board and upon certain conditions.

Memo

BILL NUMBER:S284

TITLE OF BILL: An act to amend the general business law, in relation to the unauthorized sale of veterans' commemorative property that has been placed in a cemetery and the unauthorized sale of cemetery markers and flagholders

PURPOSE: This bill prohibits the unauthorized sale of veteran commemorative cemetery markers, flag holders, monuments, statues or other physical memorabilia that are over 75 years old by cemeteries if such property is currently placed or located within a cemetery.

SUMMARY OF PROVISIONS: Section 1: Adds a new general business law section 450-b to prohibit the unauthorized sale of veteran cemetery markers, flag holders, statues or other monuments that are over 75 years old and which are currently located in a cemetery by any individual or corporation. The bill allows cemetery corporations to engage in the purchase, sale or transfer of such veteran cemetery markers, statues or other monuments that are over 75 years old if the cemetery corporation obtains permission from the New York State Cemetery Board. The Board can authorize the purchase, sale or transfer of cemetery commemorative statutes or monuments if five conditions are satisfied. The five conditions that need to be satisfied will help to ensure that veteran grave markers or other veteran monuments will be preserved from physical deterioration and only transferred to individuals or corporations that will help to preserve such personal property. Cemetery property can only be transferred after a public hearing is conducted by the Board and veterans groups have been notified of such hearing.

Section 2: Amends General Business Law section 450-a to ensure that the provisions of section 450-b created by this act will not affect the ability of veterans organizations to sell or trade cemetery markers and flag holders.

EXISTING LAW: There is presently no law that specifically regulates the sale of historic veteran cemetery markers or monuments.

JUSTIFICATION: This legislation addresses a problem that was first brought to the bill sponsor's attention by the Sons of Union Veterans of the Civil War, Department of New York. It seems that particularly with Civil War veteran grave yards, that the cemetery markers. statues and monuments are becoming valuable because of their age and the ornate style in which they were designed and constructed. Further, that these valuable historic cemetery markers are being sold by cemetery Corporations. Civil War veteran groups maintain that many of these Civil War monuments erected in cemeteries were donated by veteran groups after the civil war and are, in equitable terms, the property of the veteran's groups and the communities in which they are situated. Further, that these Civil War monuments should remain where they were

placed to help commemorate the sacrifices made by Civil War veterans. This bill curtails the unauthorized purchase, sale or transfer of veteran statues, gravestones, monuments or other personal property that commemorates the life and death of these veterans.

LEGISLATIVE HISTORY: See a similar bill S.3784-B of 2003/2004, Passed the State Senate in 2004 S.4835 of 2007/2008 - Passed Senate S.769 of 2009/2010 S.1504 of 2011/2012 - Passed Senate

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: On the 180th day after it shall have become law, with provisions.

Text

STATE OF NEW YORK
________________________________________________________________________
284
2013-2014 Regular Sessions
IN SENATE
(PREFILED)
January 9, 2013
___________

Introduced by Sens. LARKIN, ADDABBO, AVELLA, BALL, CARLUCCI, GALLIVAN,
RITCHIE, VALESKY -- read twice and ordered printed, and when printed
to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to the unauthor-
ized sale of veterans' commemorative property that has been placed in
a cemetery and the unauthorized sale of cemetery markers and flaghold-
ers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new
section 450-b to read as follows:
S 450-B. UNAUTHORIZED SALE OF VETERAN'S COMMEMORATIVE PROPERTY THAT
HAS BEEN PLACED IN A CEMETERY. 1. FOR THE PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
(A) "BOARD" MEANS THE CEMETERY BOARD CREATED PURSUANT TO SECTION
FIFTEEN HUNDRED FOUR OF THE NOT-FOR-PROFIT CORPORATION LAW.
(B) "CEMETERY" MEANS ANY REAL OR PERSONAL PROPERTY USED OR MAINTAINED
AS A CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE, BURIAL PLACE,
NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPORARY STORAGE OF
HUMAN REMAINS OR CREMATED HUMAN REMAINS, INCLUDING BUT NOT LIMITED TO
ANY CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE, BURIAL PLACE,
NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPORARY STORAGE OF
HUMAN REMAINS OR CREMATED HUMAN REMAINS WHICH IS OWNED OR CONTROLLED BY
ANY UNINCORPORATED ASSOCIATION, PUBLIC CEMETERY CORPORATION, FAMILY
CEMETERY CORPORATION, PRIVATE CEMETERY CORPORATION, RELIGIOUS CORPO-
RATION OR MUNICIPAL CORPORATION, OR WHICH IS ABANDONED OR NOT CONTROLLED
BY ANY EXISTING BOARD OR BODY.
(C) "VETERAN" MEANS A DECEASED PERSON WHO:
(1)(A) SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED
STATES DURING A WAR IN WHICH THE UNITED STATES ENGAGED; OR

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01344-01-3

S. 284 2

(B) SERVED IN ACTIVE DUTY IN A FORCE OF ANY ORGANIZED STATE MILITIA
(NOT INCLUDING THE INACTIVE NATIONAL GUARD AND NOT INCLUDING THE NEW
YORK GUARD WHEN IN AN INACTIVE STATUS) IN A FULL TIME STATUS; AND
(2) WAS RELEASED FROM SUCH SERVICE OTHERWISE THAN BY DISHONORABLE
DISCHARGE OR WAS FURLOUGHED TO THE RESERVE.
(D) "VETERAN'S COMMEMORATIVE PROPERTY" MEANS ANY MONUMENT, HEADSTONE,
MARKER, MEMORIAL, PLAQUE, STATUE, VASE, URN, DECORATION, FLAG HOLDER,
BADGE, SHIELD, ITEM OF MEMORABILIA OR OTHER EMBELLISHMENT, THAT:
(1) IS OVER SEVENTY-FIVE YEARS OLD;
(2) IDENTIFIES OR COMMEMORATES ANY VETERAN OR GROUP OF VETERANS,
INCLUDING BUT NOT LIMITED TO ANY VETERANS' ORGANIZATION OR ANY MILITARY
UNIT, COMPANY, BATTALION, OR DIVISION; AND
(3) HAS BEEN PLACED IN ANY CEMETERY.
2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS SECTION,
IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM, ASSOCIATION, PARTNERSHIP,
LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY, CORPORATION OR OTHER
ENTITY TO ENGAGE IN THE PURCHASE, SALE OR TRANSFER OF ANY VETERAN'S
COMMEMORATIVE PROPERTY. A VIOLATION OF THE PROVISIONS OF THIS SUBDIVI-
SION SHALL CONSTITUTE A CLASS B MISDEMEANOR AS DEFINED IN THE PENAL LAW.
3. (A) ANY UNINCORPORATED ASSOCIATION, PUBLIC CEMETERY CORPORATION,
FAMILY CEMETERY CORPORATION, PRIVATE CEMETERY CORPORATION, RELIGIOUS
CORPORATION OR MUNICIPAL CORPORATION THAT OWNS OR CONTROLS A CEMETERY
WHERE ANY VETERAN'S COMMEMORATIVE PROPERTY HAS BEEN PLACED MAY PETITION
THE BOARD FOR PERMISSION TO SELL, TRADE OR TRANSFER ALL OR ANY PART OF
SUCH VETERAN'S COMMEMORATIVE PROPERTY. THE CRITERIA FOR APPROVING SUCH
SALE, TRADE OR TRANSFER OF SUCH VETERAN'S COMMEMORATIVE PROPERTY ARE AS
FOLLOWS:
(1) SUCH VETERAN'S COMMEMORATIVE PROPERTY IS AT REASONABLE RISK OF
PHYSICALLY DETERIORATING SO THAT IT WILL BECOME UNRECOGNIZABLE AS IDEN-
TIFYING OR COMMEMORATING THE VETERAN OR GROUP OF VETERANS ORIGINALLY
IDENTIFIED OR COMMEMORATED THEREBY;
(2) SUCH VETERAN'S COMMEMORATIVE PROPERTY IS PROPOSED TO BE SOLD,
TRADED OR TRANSFERRED TO A SUITABLE PERSON, FIRM, ASSOCIATION, PARTNER-
SHIP, LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY, CORPORATION OR
OTHER ENTITY THAT WILL PRESERVE THE CURRENT CONDITION OF SUCH VETERAN'S
COMMEMORATIVE PROPERTY AND PLACE SUCH VETERAN'S COMMEMORATIVE PROPERTY
IN A SUITABLE PLACE THAT WILL COMMEMORATE SUCH VETERAN OR GROUP OF
VETERANS;
(3) THE PETITIONER NEEDS TO SELL, TRADE OR TRANSFER SUCH VETERAN'S
COMMEMORATIVE PROPERTY TO ENSURE THAT SUFFICIENT FUNDS ARE AVAILABLE TO
SUITABLY MAINTAIN THE CEMETERY WHERE SUCH VETERAN'S COMMEMORATIVE PROP-
ERTY WAS PLACED, AND THE SPECIFIC LOT, PLOT, GRAVE, BURIAL PLACE, NICHE,
CRYPT OR OTHER PLACE OF INTERMENT OF SUCH VETERAN OR GROUP OF VETERANS,
SO THAT SUCH PLACES WILL RETAIN THE RESPECT THAT SUCH HALLOWED PLACES
DESERVE;
(4) THE VETERAN'S COMMEMORATIVE PROPERTY THAT IS TO BE SOLD, TRADED OR
TRANSFERRED SHALL BE REPLACED AT ITS ORIGINAL SITE BY A FITTING REPLACE-
MENT COMMEMORATIVE PROPERTY, MONUMENT OR MARKER THAT APPROPRIATELY IDEN-
TIFIES AND COMMEMORATES SUCH VETERAN OR GROUP OF VETERANS;
(5) IF THE VETERAN'S COMMEMORATIVE PROPERTY TO BE SOLD, TRADED OR
TRANSFERRED IS REASONABLY KNOWN TO THE PETITIONER TO HAVE BEEN DONATED
TO THE PETITIONER BY ANY VETERANS' ORGANIZATION, INCLUDING BUT NOT
LIMITED TO THE GRAND ARMY OF THE REPUBLIC, THE SONS OF UNION VETERANS OF
THE CIVIL WAR, THE SONS OF CONFEDERATE VETERANS, THE VETERANS OF FOREIGN
WARS, THE DISABLED AMERICAN VETERANS, THE UNITED SPANISH WAR VETERANS,
THE JEWISH WAR VETERANS OF THE UNITED STATES, INC., THE CATHOLIC WAR

S. 284 3

VETERANS, INC., THE AMERICAN LEGION, AMVETS, THE AMERICAN VETERANS OF
WORLD WAR II, THE ITALIAN AMERICAN WAR VETERANS OF THE UNITED STATES
INCORPORATED, THE MASONIC WAR VETERANS OF THE STATE OF NEW YORK, INCOR-
PORATED, THE SOCIETY OF THE CINCINNATI, OR ANY OTHER CORPORATION OR
ASSOCIATION OF VETERANS, THAT SUCH SALE, TRADE OR TRANSFER SHALL HAVE
BEEN CONSENTED TO BY SUCH VETERANS' ORGANIZATION; AND
(6) IF THE PETITIONER IS NOT THE OWNER OF THE VETERAN'S COMMEMORATIVE
PROPERTY THAT IS TO BE SOLD, TRADED OR TRANSFERRED, THAT THE PETITIONER
IS AUTHORIZED BY THE OWNER OF SUCH VETERAN'S COMMEMORATIVE PROPERTY OR
BY OPERATION OF LAW, OTHER THAN THIS SECTION, TO SELL, TRADE OR TRANSFER
SUCH VETERAN'S COMMEMORATIVE PROPERTY AND TO RETAIN AND USE THE PROCEEDS
OF SUCH SALE, TRADE OR TRANSFER.
(B) A PETITION UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE DELIV-
ERED TO THE DIVISION OF CEMETERIES WITHIN THE DEPARTMENT OF STATE. UPON
THE DELIVERY OF ANY SUCH PETITION TO THE DIVISION OF CEMETERIES, EITHER
THE BOARD OR THE DIVISION OF CEMETERIES SHALL FIX A DATE, TIME AND PLACE
OF THE HEARING. THE DATE FIXED FOR SUCH HEARING SHALL BE WITHIN A
REASONABLE TIME, NOT TO EXCEED ONE HUNDRED DAYS, AFTER THE PETITION IS
RECEIVED BY THE DIVISION OF CEMETERIES.
(C) THE PETITIONER SHALL SERVE NOTICE OF THE HEARING AND A COPY OF THE
PETITION UPON THE PERSONS AND ENTITIES MENTIONED IN SUBPARAGRAPHS TWO,
THREE, FOUR, FIVE, SIX AND SEVEN OF PARAGRAPH (D) OF THIS SUBDIVISION
WHO COULD REASONABLY BE ASCERTAINED AND CONTACTED BY THE PETITIONER AND
UPON SUCH OTHER PERSON OR PERSONS AS MAY BE DIRECTED BY THE BOARD OR THE
DIVISION OF CEMETERIES. SERVICE OF THE NOTICE OF HEARING AND PETITION
SHALL BE MADE IN SUCH MANNER AND BY SUCH DATE AS SHALL BE SPECIFIED BY
THE BOARD OR THE DIVISION OF CEMETERIES.
(D) AT SUCH HEARING, THE FOLLOWING PERSONS AND ENTITIES, OR THEIR
REPRESENTATIVES, MAY BE HEARD:
(1) THE PETITIONER,
(2) ANY PERSON OR ENTITY, OTHER THAN THE PETITIONER, WHO IS THE OWNER
OF THE VETERAN'S COMMEMORATIVE PROPERTY IN QUESTION,
(3) ANY VETERAN'S ORGANIZATION THAT DONATED THE VETERAN'S COMMEMORA-
TIVE PROPERTY IN QUESTION TO THE PETITIONER,
(4) THE FAMILY OF EACH VETERAN AT WHOSE LOT, PLOT, GRAVE, BURIAL
PLACE, NICHE, CRYPT OR OTHER PLACE OF INTERMENT THE VETERAN'S COMMEMORA-
TIVE PROPERTY IN QUESTION IS OR WAS PLACED,
(5) THE DIVISION OF VETERANS' AFFAIRS,
(6) THE DIVISION OF MILITARY AND NAVAL AFFAIRS,
(7) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, AND
(8) ANY OTHER MEMBER OF THE PUBLIC WHO WOULD LIKE TO OFFER WRITTEN OR
ORAL TESTIMONY. TESTIMONY MAY BE HEARD IN PERSON OR BY COUNSEL OR
SUBMITTED IN WRITING.
(E) THE BOARD SHALL RENDER ITS DECISION IN WRITING, WITHIN SIXTY DAYS
OF THE HEARING, AND SHALL FORWARD A COPY THEREOF TO EACH PERSON WHO
APPEARED AT THE HEARING. ANY ORDER OR DETERMINATION OF THE BOARD SHALL
BE SUBJECT TO JUDICIAL REVIEW PURSUANT TO PARAGRAPH (D) OF SECTION
FIFTEEN HUNDRED FOUR OF THE NOT-FOR-PROFIT CORPORATION LAW. ANY ORDER OR
DETERMINATION OF THE BOARD GRANTING THE PETITION IN WHOLE OR IN PART
MAY, AT THE DISCRETION OF THE BOARD, SPECIFY THE MANNER IN WHICH THE
PETITIONER IS TO USE OR APPLY THE PROCEEDS OF THE SALE, TRADE OR TRANS-
FER. IN PARTICULAR, BUT NOT BY WAY OF LIMITATION, IF THE PETITIONER IS
AN UNINCORPORATED ASSOCIATION OR CORPORATION THAT IS SUBJECT TO THE
PROVISIONS OF ARTICLE FIFTEEN OF THE NOT-FOR-PROFIT CORPORATION LAW, ANY
ORDER OR DETERMINATION OF THE BOARD GRANTING THE PETITION IN WHOLE OR IN
PART MAY, AT THE DISCRETION OF THE BOARD, SPECIFY THAT PETITIONER DEPOS-

S. 284 4

IT THE PROCEEDS OF THE SALE, TRADE OR TRANSFER IN THE PERMANENT MAINTE-
NANCE FUND MAINTAINED BY PETITIONER PURSUANT TO PARAGRAPH (A) OF SECTION
FIFTEEN HUNDRED SEVEN OF THE NOT-FOR-PROFIT CORPORATION LAW.
(F) THE BOARD SHALL ADOPT SUCH REGULATIONS REGARDING PETITIONS, HEAR-
INGS AND PROCEDURES UNDER THIS SUBDIVISION AS MAY BE APPROPRIATE.
S 2. Section 450-a of the general business law, as added by chapter
478 of the laws of 1979, is amended to read as follows:
S 450-a. Unauthorized sale of cemetery markers and flag holders.
Except for a veterans' organization, those businesses which normally
carry on such trade, or are authorized by veterans' organizations to do
so, it shall be unlawful for any person, firm, association or corpo-
ration to engage in the buying or selling of metal cemetery markers and
flag holders bearing the insignia of any veterans' organization placed
upon the graves of veterans. A violation of the provisions of this
section shall constitute a violation and shall be punishable by a fine
of not more than five hundred dollars or not more than fifteen days
imprisonment or both. NOTHING IN THIS SECTION SHALL PROHIBIT THE SALE,
TRADE OR TRANSFER OF ANY METAL CEMETERY MARKER OR FLAG HOLDER BEARING
THE INSIGNIA OF ANY VETERANS' ORGANIZATION IF SUCH METAL CEMETERY MARKER
OR FLAG HOLDER IS VETERAN'S COMMEMORATIVE PROPERTY, AS DEFINED IN
SECTION FOUR HUNDRED FIFTY-B OF THIS ARTICLE, AND SUCH SALE, TRADE OR
TRANSFER SHALL HAVE BEEN AUTHORIZED BY THE CEMETERY BOARD IN ACCORDANCE
WITH THE PROVISIONS OF SUCH SECTION.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that the cemetery board
in the division of cemeteries in the department of state may promulgate
rules and regulations prior to such effective date to implement the
provisions of this act.

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